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IT is true, that through custom and long continuance, this is now become the common assurance of the Land; and I am not ignorant
that this point received a full resolu∣tion by the other Judges in Marie Portingtons case, in my Lord Cooks tenth Book, that such Recovery was good and binding, not onely to the issue in tail, but those in remain∣der likewise. Yet I hope a man may now with freedom dispute it, since all conscionable honest men, that ever I met with, oppose it; and I dare say, that policy and private in∣terest first made this conveyance Lawfull, or at least to seem so. And being that in the discourse of this case, it will be necessarie to know what the Law was before the Stat. of 13. E. 1. of intails, and the mi∣schief of that Law, which caused the making of that Stat. for a remedy; it will not be amiss if I cite the Stat. wherein we shall find both the one and the other; the mischief, and the remedy; and then it will be easie to
judge whether the mischief against which the Act of 13. E. 1. was pro∣vided, doth not still continue by common Recoveries, notwithstand∣ing the remedy.
But before I cite the Stat. I can∣not but put you in mind, that it hath been desired and proposed by some in Print (who either never read the said Stat. or did not well un∣derstand it) that the said Stat. might be taken away; the mischief at the common Law revived, and the re∣medy suppressed. All that I shall say to such, is, that that Law (if we will believe our Judges and Sages of the Law) was made by very Sage and wise men; & therefore we ought to judge it to be made upon very good grounds and reasons, and so not to be repealed without better reason; but I need say no more, for I doubt not you will find upon the
reading of it, that it was made upon solid and profound reason, and so not to be altered upon any Clarks or Attornies motion.